Litigation

Submitting A Claim To The Wrong Insurance Company Is Not A Reasonable Excuse For Untimely Submission Of A Claim

If an insured sends a claim form to the wrong insurer, that error is not a reasonable justification for failing to submit a claim to the proper insurer within the time limit enforced by the policy of insurance.

In New Millennium Medical Imaging, P.C. v. 21st Century Insurance Company, 2022 WL 2525553 (2^nd Dep’t 2022), a defendant insurer disclaimed coverage for a first-party no-fault claim after the plaintiff insured failed to submit a claim form within 45 days of services rendered, as required by the subject policy of insurance. As such, the insured initiated a lawsuit against the insurer to recover the first-party no-fault benefits. At the close of discovery, both parties moved for summary judgment.  The insured conceded that it failed to submit the claim form within 45 days because it accidently sent the claim form to a different insurance company. It argued that this error was a reasonable justification for its breach of the policy, and that it was entitled to recover the first-party no-fault benefits. The Civil Court granted the insured’s motion for summary judgment and denied the insurers motion to dismiss the complaint. In response, the insurer appealed the Civil Court’s decision.

On appeal, the Appellate Term for the Second Department reversed the Civil Court’s decision and granted the insurers motion for summary judgment, holding that the insured did not establish a reasonable justification for initially submitting the claim form to the wrong insurance company, given the claim form which the insured submitted to the wrong insurance company bore the proper insurer’s name and address. A harsh result maybe, but the court’s decision gave weight to the insurance policy provisions on notice.

Thanks to Drew Fryhoff for his contribution to this post.  Should you have any questions, please contact Tom Bracken.

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PA Courts Put A Limit On Extensive Discovery

In a recent case from the Eastern District of PA, Fost v. Kennedy, the court denied the plaintiff’s motion to compel the defendant to produce extensive documents in a punitive damages case. In this auto accident case, the court held several discovery conferences to resolve discovery issues. The parties exchanged seven letters concerning discovery. The court finally ruled on a motion to compel finding that the plaintiff is due discovery responses, but the defendant cannot be compelled to produce documents that do not exist.

The plaintiff in the case brought punitive damages claims against a truck driver and his employers alleging that the defendants acted recklessly. As a result, the plaintiff sent discovery request demanding hundreds of hours of videos of the employee’s truck driving. The court found that the plaintiff was due discovery responses, but the extensive discovery requests were disproportionate. At this point the trucking company and produced almost one weeks’ worth of video prior to the accident. Citing a ruling from the Middle District of PA, District courts must not impose “inordinate and expensive burden[s]” in discovery. Westfield Ins. Co. v. Icon Legacy Custom Modular Homes, 321 F.R.D. 107, 118 (M.D. Pa. 2017). As a result, the court denied the plaintiff’s request for production in relation to the video footage.

Thanks to Kevin Riley for his contribution to this post.  Should you have any questions, please feel free to contact Tom Bracken.

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Plaintiffs Might Need a Stopwatch: Plaintiff’s Defect Claim Dismissed Due To Failure To Prove How Long A Defect Existed

In Hendershot v. Walmart, Inc., the Pennsylvania District Court for the Middle District of Pennsylvania dismissed a case against Walmart because the plaintiff failed to provide evidence of how long a mat was rolled up before the plaintiff tripped and fell.

In Hendershot, the plaintiff filed suit against Walmart after she tripped and fell on a rolled-up mat in her local Walmart store. Walmart filed a motion for summary judgment, arguing that the plaintiff could not meet her burden to prove actual or constructive notice. In response, the plaintiff relied on a unique exception to the notice requirement where “if the harmful transitory condition is traceable to the possessor or his agent’s acts, (that is, a condition created by the possessor or those under his authority), then the plaintiff need not prove any notice in order to hold the possessor accountable.”

The court, however, found that the exception did not apply, reasoning there was no evidence that Walmart actually caused the rolled up mat. Thus, there was no actual notice. The court also found no constructive notice as plaintiff failed to show a recurring condition nor that the rolled up mat had been present for any amount of time before she fell. Plaintiff’s speculative claims were dismissed

Thanks to John Lang for his contribution to this post. Should you have any questions, please contact Tom Bracken.

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Personal Injury Defendants May Be Entitled To Additional Discovery When Plaintiffs Are Involved In Subsequent Accidents

Recently, in Lewis v. City of New York, the New York Appellate Division, Second Department, ruled on a defendant’s motion to compel the plaintiff to appear for further deposition and medical examinations.  In this personal injury case which arose from a 2016 motor vehicle accident, Defendants moved to compel further discovery when they learned the plaintiff suffered additional injuries in a subsequent motor vehicle accident in August 2018.

In reversing a trial court denial the Appellate Division, Second Department, reversed, explaining the subsequent accident “constituted unusual or unanticipated circumstances warranting additional discovery, including a further deposition and medical examination of the plaintiff.”

The court, however, affirmed the trial court’s denial of defendants’ motion to preclude plaintiff from offering evidence on the issue of damages at trial, pursuant to CPLR 3126. Such a remedy, the court elaborated, is “drastic,” and defendants failed to make a requisite showing that “the [opposing] party’s conduct is willful and contumacious.”

This case demonstrates the importance of promptly seeking all discovery (including medical) in a timely fashion once you are put on notice of later treatments or accidents.

Thanks to Andrew Henriquez for his contribution to this post.  Should you have any questions, please feel free to contact Tom Bracken.

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Even With A Jury Finding Of Bad Faith On Behalf Of The Losing Party, Attorneys Fees May Not Be Recoverable

In Elmagin Capital, LLC v. Chao Chen, et al., Judge Stephanos Bibas declined to award attorneys fees to prevailing defendants, despite the fact that the jury found that the plaintiff acted in bad faith by filing the suit in the first place.

Elmagin Capital originally sued multiple defendants for trade-secret misappropriation and breach of contract. Elmagin lost on all issues at trial and the jury found that it had brought its trade secret claims in bad faith. The defendants then sought attorneys’ fees under federal and state law.

Under federal law, the court may award reasonable attorneys’ fees if the claims “completely lack evidence” and the plaintiff knew or was reckless in not knowing that its claims lacked merit. Based on the evidence presented, the jury found that Elmagin’s claims were brought in bad faith. Judge Bibas, however, found that the jury’s finding was merely advisory, and therefore rejected it.

Judge Bibas reasoned that because attorneys’ fees are generally an equitable remedy, the defendants had no right to a jury verdict on the issue. Judge Bibas found that there was more than some basis for Elmagin’s claims, which entitled him to treat the jury’s decision as advisory. He ultimately determined that the jury’s verdict on bad faith was mistaken, and exercised judicial discretion to deny attorneys’ fees.

Thanks to John Lang for his contribution to this post.  Should you have any questions, please do not hesitate to contact Tom Bracken.

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Plaintiff’s Premises Liability Argument Trashed By The Appellate Department

In a recent premises liability claim, a plaintiff slipped and fell on refuse on the walkway of her building.  She brought suit arguing there was an issue of fact as to constructive notice to the defendant, however the First Dept. disposed of her argument.   In Rodriguez v. NYC Housing Authority, 2022 NY Slip Op 03461 (1st Dept. 2022), plaintiff had a slip and fall on the walkway of the building due to a cardboard box being left on the ground. Defendant moved for summary judgment arguing that it did not have actual or constructive notice of the refuse and they maintained a reasonable cleaning routine of the area because the building caretaker cleaned the walkway twice a day. The trial court granted summary judgment concluding that constructive notice could not be proven because the cardboard box could have been left after the caretaker had cleaned the walkway and he would not have known about it, and the building proved that it regularly patrolled the walkway.

The First Dept. affirmed the dismissal of plaintiff’s claim ruling that the premises owner was not required to patrol the area 24 hours a day, and the caretaker’s twice a day schedule was not “manifestly unreasonable.” The plaintiff tried, unsuccessfully, to argue triable issues of fact existed regarding constructive notice because the caretaker testified that he knew that tenants regularly left garbage on the walkway. The First Dept. rejected plaintiff’s assertion of triable issues of fact, concluding that a general awareness of a problem was addressed by the caretaker’s regular schedule of cleaning the walkway twice a day; and a general awareness of refuse does not lead to a specific awareness of the cardboard box which caused the accident to which defendants could not be found culpable. This case highlights that even in the First Dept., which is a notoriously plaintiff-friendly venue, a strong argument against constructive notice of a defect can sustain a summary judgment dismissal, so long as there is evidence that the premises owner maintained a regular patrolling of the public area for any dangerous defects or tripping hazards.

Thanks to Raymond Gonzalez for his contribution to this article.  Please feel free to contact Tom Bracken.

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New York Court Approves Service Of TRO Via Non-Fungible Token

With approval from the New York Supreme Court, Miami attorneys with Holland & Knight’s asset recovery team recently served a defendant with a temporary restraining order in the form of a non-fungible token (“NFT”).

The underlying lawsuit is based on the unauthorized access to, and theft of, approximately $8 million worth of virtual assets on the Ethereum blockchain. The idea to serve the defendants via NFT emerged when the anonymous defendants allegedly attempted to tamper with their fraudulent transaction history that is visible on the blockchain. By serving the defendants via NFT 24 hours before filing the complaint, plaintiff’s counsel was able to preserve the transaction history reflecting millions of dollars of cryptocurrency.

Plaintiff filed an Order to Show Cause seeking a temporary restraining order against defendants, and the Court permitted plaintiff’s attorneys to serve a copy of the Order to Show Cause and supporting papers upon the person controlling the Address via a special-purpose Ethereum-based token airdropped into the Address. The Service Token contained a hyperlink to a website created by plaintiff’s counsel wherein they would publish the Order to Show Cause. The hyperlink also included a mechanism to track when a person clicks on it. The court found that such service “shall constitute good and sufficient service for the purposes of jurisdiction under NY law on the person or persons controlling the Address….” This decision is significant in that it sanctions a unique and novel approach to service of process in litigation involving the cutting-edge subjects of NFT/Cryptocurrency.

Thank you to Alexandra Deplas for her contribution to this post. Please contact Andrew Gibbs with any questions.

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(Knock on Wood) — NY Courts Lift Facemask and 3-Foot Physical Distancing Requirements

Effective June 16, 2022, New York courthouse visitors, lawyers, judges, and staff will no longer be required to wear masks, with proof of vaccination, in light of receding COVID rates. Also being lifted in the courthouses is the three-foot physical distancing requirement.  (The policy identifies a vaccination card or a New York State Excelsior Plus Vaccination Pass as proof of vaccination.) These steps are part of an effort to return the Court to full operations and are a return to the model that was in place throughout the Unified Court System last summer. The changes come as welcomed news to some practitioners who found it difficult to hear statements in Court, have their statements heard, or speak discretely to their clients. Masks also interfered with measuring a witness’ credibility or the ability to develop a rapport with jurors. On the civil side, with many appearances remaining virtual with some exceptions, mask or no mask is of little consequence.  But in person, we’re getting closer to normalcy. A color-coded system will be in place within the Courthouse Courts with court visitors receiving a white pass and an attorney/agency a green pass that will permit entry without a health safety screening and without wearing a facemask. These passes must be worn on the outermost piece of clothing. The attorney/agency pass will be valid for six months from the issuance date or one year from the date of last vaccination or booster dose, whichever is shorter. Judges and employees of the Unified Court System will display a valid, unexpired orange card to enter all areas of the court without a facemask.     Local and national COVID trends will remain closely and thoughtfully monitored, to provide a public compelled to enter the space with the utmost protections and considerations. We will refrain from calling this development “the beginning of the end” of COVID, because, well, we’ve done that before, and believe in jinxes!   Thanks to John Diffley for his contribuition to this post.  Please email Brian Gibbons with any questions.Read More

No Lane For Recovery When Central Park Cyclist Gets Hit By A Truck (NY)

The First Department Appellate Division granted a defendant summary judgment dismissal in a motor vehicle accident claim involving a truck driver and a pedestrian bicyclist. In Peter Deutch v. City of New York, 2022 NY Slip Op 03174 (1st Dept. 2022),  plaintiff was bicycling in Center Park East when he collided with a flatbed truck owned by defendants Hellman Electric Corp. The accident occurred on a three-lane roadway, with the left lane for pedestrian traffic, the middle lane for bicycle traffic and the right most lane for vehicular traffic. Plaintiff was using the middle lane as he approached the truck when he swerved to avoid pedestrians walking, and in doing so, collided with the flatbed truck sustaining serious injury.

In support of its motion, Defendant Hellman Electric provided photographs of skid marks on the road from the truck, testimony of three separate eyewitnesses, and the affidavit of an accident reconstruction expert, arguing the truck did not violate any traffic law and stayed in its lane up to and including the moment of collision. The First Department concluded the evidence sustained a prima facie argument by proving the truck did not change lanes and did not cause the accident. Plaintiff’s self-serving testimony that the truck crossed into the bicycle lane was considered speculative. The First Dept. was also not persuaded by plaintiff’s accident reconstruction expert who opined, without any supporting case law, that a truck must maintain three-foot distance when passing a bicyclist.

This case demonstrate the evidence needed by a defendant to win summary judgment in a pedestrian/bicyclist knockdown.  Eyewitness testimony, photographs and utilization of an accident reconstruction expert sustained defense argument that their vehicle stayed in their lane of traffic at the moment of collision and did not violate any traffic law.  Defendant’s evidence was not outweighed by the speculative and circumstantial evidence submitted by plaintiff in his opposition.

Thanks to Raymond Gonzalez for his contribution to this post.  Should you have any questions, please contact Thomas Bracken.

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No Owing If It’s Still Snowing (PA)

The trial court in Monroe County granted summary judgment in a premises liability case where the Plaintiff slipped and fell during an ongoing storm of freezing rain and snow, thereby reaffirming that a property owner has no obligation to correct snow and ice conditions until a reasonable time after the storm has ended.

In Mertira v. Camelback, Elsa Mertira was injured when she slipped and fell while leaving a restaurant at Camelback Lodge with her family at approximately 8:30 p.m. on January 1, 2021.  It was undisputed that there was precipitation falling in the form of freezing rain and/or snow prior to Plaintiff entering the restaurant, and after she left.  The freezing rain and/or snow was still falling at the time of her accident and continued falling until at least three hours after her fall.  It was also undisputed that Plaintiff and her family were walking on a “grassy strip” and not a walkway / sidewalk or parking lot at the time of her fall.

To recover damages as a result of a fall due to snow or ice on a property, a plaintiff must show: (1) that snow or ice accumulated in ridges or elevations of such size an character as to unreasonably obstruct travel and constitute a danger to pedestrians; (2) that the property owner had either actual or constructive notice of the existence of the condition; and (3) that there was a dangerous accumulation of snow and ice that caused a fall.  Biernacki v. Presque Isle Condominiums Unit Owners, 828 A.2d 1114, 1117 (Pa. Super.  2003).  The property owner’s duty under such circumstances is to act within a reasonable time after notice of the condition to remove the snow or ice.  Id.  A property owner has no obligation to correct snow and ice conditions until a reasonable time after the storm has ended.  Alexander v. City of Meadville, 61 A.3d 218, 224 (Pa. Super. 2012).

There is no duty on a property owner to clear snow or ice from grassy areas that are “not intended to be traversed by pedestrians.”  Gilligan v. Villanova University, 584 A.2d 1005, 1008 (Pa. Super. 1991).  The duty only applied to sidewalks, parking lots and other paved areas where pedestrians would be expected to travel; otherwise a property owner would be responsible for clearing snow and ice for their entire property, which would be unreasonable.   Plaintiff alleged that she was forced to walk on the grassy area due to ice and snow on the sidewalks and parking lot where she was initially traversing when exiting the restaurant.  The Court rejected this argument because the property owner had no duty to address the icy or slippery conditions on a sidewalk or parking lot until after the winter event had ended and a known dangerous condition caused by hills and ridges still existed.

The Court noted that: (1) Precipitation was still falling at the time of Plaintiff’s fall, and Defendants were under no obligation to do anything until a reasonable time after the storm ended; (2) The Plaintiff failed to adduce any evidence of hills or ridges or any condition other than generally slippery conditions that existed in the local geographic area; and (3) Defendants had no duty to keep the grassy area, where Plaintiff chose to walk, free and clear from icy/snowy conditions. The area was between curb and a fence, and was not a walkway, sidewalk, or parking lot.  Each of these reasons, standing alone would have been sufficient for Defendants to prevail on their Motion for Summary Judgment.

Thanks to James Scott for his assistance with this post.  Should you have any questions, please contact Thomas Bracken.Read More